KING and LOCAL GOVERNMENT STANDARDS PANEL - [2018] WASAT 42

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   KING and LOCAL GOVERNMENT STANDARDS PANEL [2018] WASAT 42
MEMBER:   DEPUTY PRESIDENT, JUDGE SHARP
HEARD:   31 JANUARY 2018
DELIVERED          :   7 JUNE 2018
FILE NO/S:   DR 186 of 2017
BETWEEN:   TRACEY KING
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervenor

Catchwords:

Local government - Rules of conduct - Minor breaches - Standards of behaviour expected of a council - Improper use of office - Whether intended to cause detriment - Appropriate sanction for minor breach of Local Government Act 1995 (WA) - Breach of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) - Public apology

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1), reg 7(1)(b)
Local Government Act 1995 (WA), s 5.103, s 5.104, s 5.105(1), s 5.106, s 5.110, s 5.110(6), s 5.110(6)(b), s 5.125

Result:

Decision of the Local Government Standards Panel varied as to penalty but otherwise affirmed

Category: B

Representation:

Counsel:

Applicant	:	Mr J Burton
Respondent	:	Mr W Fitt
Intervenor	:	Mr W Fitt

Solicitors:

Applicant	:	Spyker Legal
Respondent	:	State Solicitor's Office
Intervenor	:	State Solicitor's Office

Case(s) referred to in decision(s):

Hipkins and Local Government Standards Panel [2014] WASAT 48
Treby and Local Government Standards Panel (2010) 73 SR (WA) 66; [2010] WASAT 81

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Ms Tracey King (applicant) was until October 2017 a member of the Council of the Town of Cambridge (Town). On 11 April 2017 the Local Government Standards Panel (respondent) found that the applicant had committed two minor breaches under the Local Government Act 1995 (WA) (LG Act) by breaching reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations). The respondent's findings relate to remarks made in a letter that the applicant, signing as a 'Cambridge councillor', wrote to the Subiaco Post concerning the Town's Mayor, Keri Shannon, and Councillor Andres Timmermanis.
The respondent on 11 August 2017 ordered under s 5.110(6)(b) of the LG Act that the applicant make a public apology at a meeting of the Council.
The applicant seeks a review by the Tribunal under s 5.125 of the LG Act of both the respondent's finding that the minor breaches of the LG Act had occurred and the penalty which the respondent imposed.
At the hearing before the Tribunal on 31 January 2018, the applicant was represented by Mr J Burton of Spyker Legal. The respondent was represented by Mr W Fitt of the State Solicitor's Office. The intervenor was the Attorney General of Western Australia (intervenor), for whom Mr Fitt also appeared.
The respondent did not take an active role in the proceedings, for reasons which the respondent gave and which were accepted by the Tribunal. The Tribunal was assisted by the intervention of the intervenor who acted as a contradictor in the proceeding.
Counsel for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WASAT 42
Decision Date: 7 JUNE 2018

CaseChat Overview and Summary

In the case before the court, the appellants, identified as KING and LOCAL GOVERNMENT STANDARDS PANEL, were involved in a dispute concerning the imposition of sanctions for minor breaches of conduct regulations by a council member. The Local Government Standards Panel had determined that the appellants had breached the standards of behaviour expected of a council member by improperly using their office, and imposed a sanction of a public apology. The matter was brought before the court to determine the appropriateness of the sanction and the interpretation of the relevant regulations.

The legal issues the court was required to decide included whether the conduct of the appellants amounted to an improper use of office, and if so, whether the sanction of a public apology was appropriate. Additionally, the court needed to interpret the relevant regulations to ascertain the standards of behaviour expected of a council member and the appropriate sanction for a minor breach.

The court found that the conduct of the appellants did not constitute an improper use of office as it was not intended to cause detriment to anyone. However, the court determined that the conduct was still a breach of the expected standards of behaviour. The court held that the sanction of a public apology was appropriate given the minor nature of the breach and the fact that it was the first such breach for the appellants. The court also emphasised the importance of maintaining public confidence in local government and the need for council members to adhere to high standards of behaviour.

As a result, the court found in favour of the appellants and quashed the decision of the Local Government Standards Panel. The court ordered that the public apology be removed from the record and that no further action be taken against the appellants for the breach in question. The court's decision highlights the importance of interpreting regulations in the context of the specific circumstances of each case and the need for appropriate sanctions that are proportionate to the nature and severity of the breach.

Orders